Observations of the Republic of Djibouti on the reply given by the French Republic to the question put by Judge Simma at the close of the first round of oral argument (translation)

Letter dated 1 February 2008 to the Registrar from the Deputy Agent

of the Republic of Djibouti

[Translation]

In reference to the explanations given by the French Republic on 29 January 2008 during the
second round of oral argument in reply to a question put by JudgeSimma on 25January2008
during the first round of oral argument, I have the honour, on the instructions of the Agent of the
Republic of Djibouti, to submit the following observations to the Court.

1. First, the Republic of Djibouti wishes to point out that the reply given by the French Republic
could be of significance to the present case only if the description of the French practice were
to show that the refusal contained in the lette r of 6June2005 sent to the Applicant was the

exception to a rule, that rule being that the Fr ench Republic generally provides substantive and
clear statements of reasons for its refusals. Even if the examples furnished by the French
Republic in support of its arguments show that the Respondent does not give reasons for its
refusals of mutual assistance, this in no way means that said practice is in accordance with its

international obligations in the present case.

2. As the Republic of Djibouti understood Judge Simma’s question, Djibouti considers that the
Respondent’s reply should have shed light on the French Republic’s practice in respect of

refusals of requests for mutual assistance as that practice existed at the date of the refusal to
grant the request for execution of the international letter rogatory presented by the Republic of
Djibouti. Accordingly, the Republic of Djibou ti expected the French Republic to give the

Court examples taken from the practice in 2005 and earlier years. The only examples of refusal
which the Respondent chose to provide were ta ken from the practice in 2007; in our view,
these examples are not relevant for purposes of the present case and show just how much the
French Republic’s reply to Judge Simma’s question must be put in perspective. On the other

hand, while the example taken by the Respondent from the refusals which it itself has received
(a refusal by Togo) dates from 2003, it obviously cannot evidence the French practice.

3. The Respondent told the Court that the French Republic rejected five of the 1,000 requests for

mutual assistance received in 2007. Despite th e rather limited information provided by the
French Republic, it appears that one refusal con cerns a request for mutual assistance submitted
by the United Kingdom and the other four concern requests from Côte d’Ivoire.

4. It is hard to identify the subject-matter of the United Kingdom’s request which was refused by
France. It would appear from the passage quoted by the Respondent that the refusal to grant
the United Kingdom’s request, presented by way of an international letter rogatory, had to do
with the fact that the United Kingdom was seek ing to have several journalists heard as

witnesses, whereas they had already given testim ony which had been forwarded to the United
Kingdom. A quick search on the web shows that the question of mutual assistance between the
United Kingdom and France has arisen in the c ontext of enquiries into Princess Diana’s death
(enquiries conducted both in the United Kingdom and France) and they have received a great

deal of media coverage. It can also be seen from the media reports that the British authorities
are not prepared to accept the French refusal and intend to challenge the decision in court.

5. In respect of the four refusals of requests for mutual assistance from Côte d’Ivoire, it is

important to note the following point. It is not at all clear whether the four requests fell within
the scope of a single case or arose out of four completely separate cases. This makes it difficult
to determine the significance of these examples for the present dispute. - 2 -

6. The Republic of Djibouti takes note of the fact that the Respondent cited the Convention on

Mutual Assistance between the French Republic and Côte d’Ivoire and stated: “the
Franco-Ivorian Convention of 24 April 1961 incl udes provisions similar to those laid down by
Article 2 (c) of the Franco-Djiboutian Convention on Mutual Assistance” 1. The Respondent

stopped there and did not tell the Court whether or not there was a provision similar to
Article 17 of the 1986 Convention at issue in the present case.

7. According to the French Republic, the letter of refusal sent to Côte d’Ivoire reads as follows:

“The Ministry informs the Embassy that, since these requests for mutual assistance are capable
of prejudicing the sovereignty and security of France, the French authorities cannot accede to
them.” 2 The 6 June 2005 letter of refusal sent to the Djiboutian authorities by the Ambassador

of France reads as follows: “After consulting my authorit3es, I regret to inform you that we are
not in a position to comply with this request.” In other words, the refusals sent to
Côte d’Ivoire must be characterized as “notificati ons”; this is in no way the case of the refusal

of 6 June 2005, which contains no information as to the reason for refusal.

8. The Republic of Djibouti showed in its oral statements that a notification must not be
considered a statement of reasons in the stri ct sense, let alone proper justification for the
4
Respondent’s resort to the exceptions set out in Article2 (c) of the 1986Convention .
Otherwise put, the letters of refusal sent to Côte d’Ivoire also show that, in the opinion of
France, it is for the recipient to search to discover the real reason, to check in the Official

Journal of the French Republic, to seek informati on from the French authorities, etc. It can
therefore be said that the letters sent to Côte d’Ivoire are based on the same premise that the
obligation to state reasons must be interpreted to be an obligation to seek out the potential

grounds and that this obligation is borne by the party receiving the letter of refusal.

9. In presenting to the Court the examples invol ving Côte d’Ivoire, the Respondent omitted to
indicate that the Ivorian cases concerned investigatio ns into the deaths of nine French soldiers,

which provoked an armed response from France. In other words, these cases are of an order
completely different from that of Djibouti’ s case against France. Apart from this, the
Respondent refrained from drawing attention to another major difference between the position

in respect of Côted’Ivoire and the refusal sen t to the Republic of Djibouti. The Respondent
failed to inform the Court that, unusually, the Convention on Mutual Assistance between the
French Republic and Côte d’Ivoire includes no provision like Article 17 of the

1986 Convention. Judge Simma’s question did no t concern France’s practice in implementing
conventions on mutual assistance not including an obligation to state reasons: “What is the
practice of France with regard to the obligation to provide reasons for a refusal to comply with

requests that are based on treaty clauses corresponding to Article3 of the said Convention?”
(Emphasis added.) Thus, from the comparison ma de by the Respondent between the refusals
sent to Côte d’Ivoire and the 6 June 2005 letter of refusal, it can be concluded that the French
Republic provided even fuller information to a State to which it was under no obligation to give

reasons than it provided to the Republic of Djibouti, notwithstanding the Respondent’s
obligation under Article 17 of the 1986 Convention.

The Republic of Djibouti expresses its keen appreci ation to the Court for having afforded it
the opportunity to provide the Court with its obser vations on the explanations given by the French
Republic in reply to the question put by Judge Simma.

1CR 2008/7, p. 35, para. 48.

2Ibid.
3
Memorial, Ann. 24.
4CR 2008/2, p. 26, para. 35 (Condorelli); p. 43, para. 50 (van den Biesen). - 3 -

As for the letter from the Agent of the French Republic which we had the honour to receive
yesterday afternoon at about 4.15 by facsimile from the Registrar dated 30January, and which

contained a despatch note to the Ambassador of France to Djibouti, we observe that the note
contained no instructions to the Ambassador and that it is dated 16 June 2005, i.e., 10 days after the
Ambassador sent his letter of refusal of 6June20 05 to the Djiboutian authorities. At any rate,
Djibouti did not receive the letter dated 31Ma y2005 until it appeared as an annex to the

Counter-Memorial.

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